Missouri Malleable Iron Co. v. Dillon

Mr. Justice Magruder delivered the opinion of the court: • The evidence tends to prove such allegations in the declaration, set forth in the statement preceding this opinion, as are necessary to a recovery. No error is assigned by counsel for appellant as to the rulings of the trial court in the admission or exclusion of evidence. One instruction was given by the trial court on behalf of the appellee, the plaintiff below, but no error in this instruction is pointed out by counsel for the appellant in their brief or argument. The court gave sixteen instructions in behalf of the appellant, as requested by it. The appellant complains that the court refused, at the close of the evidence, to exclude the evidence from the jury, and to give to the jury a written instruction, instructing, them to find the defendant not guilty. Appellant also complains that the court refused to give in its behalf two instructions asked by it, numbered, respectively, 17 and 18. The points and objections hereafter discussed grow out of the refusal of the court to give the three instructions, so asked by the appellant. The refusal of the court, to instruct the jury to find the appellant not guilty, raises the question, whether there is any evidence in the record fairly tending to support appellee’s action. (Chicago City Railway Co. v. Loomis, 201 Ill. 118; Chicago City Railway Co. v. Martensen, 198 id. 511). Where there is evidence tending to establish a cause of action, the case is one for the determination of the jury, and it is error in such case for the court to instruct the jury to find for the defendant. (Graver Tank Works v. O’Donnell, 191 Ill. 236; Illinois Steel Co. v. McFadden, 196 id. 344; Martin v. Chicago and Northwestern Railway Co. 194 id. 138; Central Railway Co. v. Knowles, 191 id. 241; Union Bridge Co. v. Teehan, 190 id. 374; Hartrich v. Hawes, 202 id. 334). Inasmuch as there is evidence tending to establish the cause of action in this case, it was not error for the court to refuse a peremptory instruction to the jury to find the defendant not guilty". (Chicago and Alton Railroad Co. v. Eaton, 194 Ill. 441). Where a motion is made to take the case from the jury and to instruct the jury to find for the defendant, the maker of such motion admits the truth of all opposing evidence, and all inferences, which may be fairly and rationally drawn from it. (Offutt v. World’s Columbian Exposition, 175 Ill. 472; Chicago and Northwestern Railway Co. v. Dunleavy, 129 id. 132; McGregor v. Reid, Murdoch & Co. 178 id. 464; Martin v. Chicago and Northwestern Railway Co. 194 id. 138). Where there is evidence, which fairly tends to support the plaintiff’s case, it must be submitted to the jury, and the plaintiff is entitled to have his case considered by the jury, if the evidence tends to prove ordinary care on his part and negligence on the part of the defendant. (Ide v. Fratcher, 194 Ill. 552; National Linseed Oil Co. v. McBlaine, 164 id. 597; Chicago and Alton Railroad Co. v. Eaton, supra). Counsel for appellant urge various reasons, suggested by the evidence and by the alleg'ed application of the refused instructions to the evidence, why the appellant was not guilty of negligence, and the appellee was not in the exercise of ordinary care for his safety. It is well settled that the master must use reasonable care to furnish his servants with a reasonably safe place for the performance of their work; aud he is liable for the negligent performance of such duty, whether he undertakes its performance personally, or through another person. (Western Stone Co. v. Muscial, 196 Ill. 382; Illinois Steel Co. v. McFadden, 196 id. 344; Himrod Coal Co. v. Clark, 197 id. 514; Pioneer Construction Co. v. Howell, 189 id. 123; Armour v. Golkowska, 202 id. 144; City of LaSalle v. Kostka, 190 id. 130; Norton v. Volzke, 158 id. 402). The evidence tends to show that appellee, with other employees of appellant, was pushing the truck over the floor towards the place where the pot, consisting of five and a half rings, or boxes, of hot castings piled one upon the other, was to be set in position and left to cool. The evidence also tends to show that these hot pots, filled with hot iron, weigh from two thousand to twenty-five hundred pounds, and are taken on the truck over this floor. The evidence also tends to show that the corner of one of the cast-iron plates, of which the annealing floor was constructed, said plate being two feet square, had been broken off and removed before appellee was engaged in the work, which resulted in the injury to him, and that there had thereby been left in the floor a hole, into which one of the wheels of the truck ran, while appellee and the others were pushing the truck. It is unnecessary to consider the question whether this hole in the floor was large or small. The hole was large enough to obstruct the progress of the truck, and to cause the pot or pile of boxes, containing hot castings, to tip or tilt, and it became necessary to get the wheel out of the hole, in order to continue the movement of the truck, with its load, to the place where it was necessary to place it, in order that the castings might be cooled. It was a part of the duty of the appellee to push the truck over the floor, and, in view of the fact that this hole was in the floor, the appellant did not'furnish á safe place for the appellee to work in or upon. The evidence is clear and conclusive that the appellee had no knowledge of this hole in the floor while he was so at work, or prior to his entering upon the work. The evidence tends to-show there were scales or packing upon the door of the room, which covered the same, and concealed the hole from view. Counsel for appellant claim that appellant cannot be held liable, because it had no notice of the existence of the hole in the floor prior to the happening of the accident. The rule in such cases is, that the master is liable where the circumstances are such that he ought to have had notice of the defective condition of the cause of the injury, whether he had actual notice or knowledge or not. The master cannot screen himself from liability upon the ground that he did not know of the defects in his appliances, if he might have known of them by the exercise of due care. “The law will imply and infer notice of any defect, which, by the use of ordinary care,- might have been known to the master.” (Metcalf Co. v. Nystedt, 203 Ill. 333; Whitney & Starrette Co. v. O’Rourke, 172 id. 177; Consolidated Coal Co. v. Haenni, 146 id. 614). It was the duty of the appellant to see that the floor was clean and free from such obstructions, as concealed the plates of the floor. It was the duty of the appellant to see that the iron plates in the floor were unbrokén, and that the floor was in good repair and safe condition for use by its servants in the performance of the work required of them. In such cases, the employer is negligent if he fails in the -duty of inspection. Here, it certainly was the duty of the appellant to inspect the floor, and, upon discovery of the hole by means of such inspection, it was its duty to repair the broken plate. In Armour v. Brazeau, 191 Ill. 117, and in Wrisley Co. v. Burlen, 203 id. 250, we held that “the servant is not to be deemed as having notice or knowledge of such defects and insufficiencies, as can be ascertained only by investigation and inspection, for the purpose of ascertaining that there is no danger,” and in those cases we said: “While there is no absolute duty to keep appliances in safe condition, there is a duty to use reasonable care to keep them fit, and this duty may require inspection at reasonable intervals, and the employment of such tests as will reveal the condition of the machinery or appliances. This duty of inspection rests upon the employer, and not upon the employee, and depends upon the character of the machine or appliance, since ordinary care may require an inspection oftener in one case than in another.” The evidence being undisputed that the defect in the floor existed, we are unable to say that appellant could not have known of the existence of the defect by the exercise of due care. The truck, while being moved over the floor, was attended by ten men. One of these men, named Bolton, was entrusted with the duty of controlling and guiding the movement of the truck. There is evidence, tending to show that Bolton was the foreman of the truck, and that he ordered the other men, engaged in moving it, what to do, and how to perform their work. There is evidence, tending to show that the other nine men were under Bolton’s charge, and that he had charge of the truck, and was steering the truck. One of appellant’s own witnesses says, that Bolton was the man, who handled the truck, and told the other men what they were to do. When the wheel of the truck was caught in the hole while the men were pushing the truck, Bolton gave an order that they should pull the truck out. The evidence shows that they then all turned around, and began to pull in pursuance of his order, instead of pushing, as they had theretofore done. While they were thus endeavoring to pull the wheel out of the hole, the pot fell over and injured appellee. There is evidence, tending to show that it would not have fallen, if the wheel had not gone into the hole. It is claimed on the part of the appellant, that the injury resulted from the act of Bolton in directing the men to pull the truck, instead of pushing it. If Bolton stood to the appellant in the relation of a vice-principal, his negligence, if he was guilty of negligence, could not be imputed to the appellee. If, as some of the testimony tends to prove, he was appellant’s foreman, his negligence was th'e negligence of appellant. “Where a master confers authority upon one of his employees to take charge and control of a certain class of workmen in carrying on some particular branch of his business, such employee, in governing and directing the movements of the men under his charge with respect to that branch of the business, is the direct representative of the master, and not a mere fellow-servant; and all commands, given by him within the scope of his authority, are in law the commands of the master.” (City of LaSalle v. Kostka, 190 Ill. 130, and cases there cited.) It is claimed, however, on the part of appellant that Bolton and the appellee were mere fellow-servants, and that, therefore, appellee cannot recover on account of the negligence of Bolton, if Bolton was guilty of negligence. Whether or not Bolton and appellee were fellow-servants was a question of fact to be determined by the jury, and was submitted to the jury under the instructions of the court; and, upon this issue, the jury found against the appellant. “The definition of fellow-servants is for the court. Whether employees of the common master fall within that definition is a question of fact, hence whether or not the relation exists is a mixed question of Law and fact. * * * The burden of proof to establish the relation is upon the defendant,—and that, even though the plaintiff alleges the negative,in his declaration.” (Hartley v. Chicago and Alton Railroad Co. 197 Ill. 440.) Where the facts are conceded, or where there is no dispute whatever as to the facts, and they show beyond question that the relation of fellow-servant exists, then the question may become one of law. (Chicago and Eastern Illinois Railroad Co. v. Driscoll, 176 Ill. 330; Hartley v. Chicago and Alton Railroad Co. supra..) In the case at bar, however, the question as to whether the relation of fellow-servants existed between Bolton and appellee was a disputed question. The facts in relation to the same were not conceded. Three witnesses, testifying for appellee, and one for appellant, swore, in substance, that Bolton was a foreman in charge of the other men, and invested with authority to direct their actions and their work; and this contention was contradicted by testimony offered by the appellant. There was here, therefore, a conflict in the evidence as to the existence of the relation of fellow-servants, and, therefore, it was properly submitted to the jury. Even if, however, the relation of fellow-servants did exist between Bolton and the appellee, there is another principle, well settled by the decisions of this court, which has application to the facts, shown by the record in this case. The law is that, where an injury to a servant is the combined effect of the negligence of the master and of a fellow-servant, the servant may recover. (Pullman Palace Car Co. v. Laack, 143 Ill. 242; Chicago and Northwestern Railway Co. v. Gillison, 173 id. 264; Chicago Economic Fuel Gas Co. v. Myers, 168 id. 139; American Express Co. v. Risley, 179 id. 295). In the recent case of Armour v. Golkowska, 202 Ill. 144, we said: “If an injury result from the negligence of the master, combined with that of a fellow-servant, and the injury would not have happened had the master observed due care for the safety of the injured servant, the master is liable.” In the case at bar, the appellant company was guilty of negligence in failing to keep the floor in a good and safe condition, as was evident by the existence of a hole into which one of the wheels of the truck sank; and if Bolton, regarded as a fellow-servant with appellee, was also guilty of negligence in ordering the men to pull the truck out of the hole, instead of resorting to some other method of extricating it, or if Bolton was guilty of negligence in moving the pole or tongue of the truck up and down, it can not be said that the injury was not caused by a combination of the negligence of appellant and of Bolton. Therefore, appellant is liable. One is liable for an in- - jury, caused by the concurring negligence of himself and a third party, to the same extent as for an injury, caused entirely by his own negligence. Here, there is evidence tending to show that, if appellant’s negligence was not the sole cause of the injury to appellee, he was injured by the concurring negligence of appellant and Bolton. It is said, however, that the existence of the defect in the floor was not the proximate cause of the injury to appellee. The position of appellant upon this branch of the case is, that the pot, consisting of the boxes loaded with hot castings, did not fall when the wheel entered the hole in the floor, but that it fell after the wheel was in the hole and in consequence of the efforts of the men to pull the wheel out of the hole. It is, therefore, contended that the proximate cause of the injury was the effort to extricate the wheel from the hole, and not the existence of the hole itself. It is charged that there is a variance between the declaration and the proof, upon the alleged ground that, according to the averment in the declaration, appellee was injured in consequence of the truck running into the hole, while the proof, it is said, shows that the pot broke, while the. men were in the act of pulling- in a vain endeavor to extricate the wheel of the truck from the hole. It is to be observed that no appreciable time elapsed between the falling of the wheel into the hole and the breaking of the pot. The testimony tends to show that, as soon as the wheel of the truck ran into the hole in the floor, the foreman of the truck gave the order to “pull out,” and that the men all turned around and pulled, and, as soon as they started to pull, the pot broke in two and fell over upon appellee’s arm. It is thus evident that the entry of the wheel into the hole, and the act of pulling in pursuance of Bolton’s order, were all parts of one transaction; and it can not be denied that, but for the running of the wheel of the truck into the hole, the appellee would not have been injured. Had not the truck run into the'hole, there would have been no necessity to attempt to pull it out, and appellee would not have been injured. One of the witnesses says that the pot would not have fallen, if the truck had not gone into the hole. The question, whether or not the negligence of appellant was the proximate cause of the injury, was a question of fact for the jury, and they have settled it against appellant. (Pullman Palace Car Co. v. Laack, supra; City of Rock Falls v. Wells, 169 Ill. 224; Chicago and Eastern Illinois Railroad Co. v. Mochell, 193 id. 208; Chicago and Alton Railroad Co. v. Harrington, 192 id. 9; True & True Co. v. Woda, 201 id. 315; Armour v. Golkowska, supra). “The general test as to whether negligence is the proximate cause of an accident is, therefore, said to be, whether it is such that a person of ordinary intelligence should have foreseen that an accident was liable to be produced thereby. Proximate cause is, therefore, probable cause, and remote cause is improbable cause.” (1 Thompson on Negligence, sec. 50; Armour v. Golkowska, supra). In Village of Carterville v. Cook, 129 Ill. 152, it was charged as negligence, that the city had constructed a sidewalk at an elevation of some six feet above the surface of the ground, and had not provided a railing for the protection of pedestrians. In commenting upon the latter case in Armour v. Golkowska, supra, we said (p. 149): “The plaintiff, a boy, was, by the inadvertent or negligent act of another boy, pushed from the sidewalk, and, there being no railing, fell to the ground and was injured, and we held that, although the primary cause of the injury was the act of the other boy, still, that as the village was negligent in failing to protect the walk, and the injury was such as common prudence could have ' foreseen, the negligence of the village was to be regarded as the proximate cause of the injury, and the village was held liable to respond in damages. The same principle was announced and applied by this court in City of Joliet v. Verley, 35 Ill. 58.” If, in the case thus referred to, where the elevated sidewalk had no railing, the act of one boy in pushing another from the sidewalk was not the proximate cause of .the injury, but the act of the village in failing to' put a railing upon the sidewalk was the proximate cause of the injury, then, in the case at bar, it can with equal truth be said, that the act of trying" to extricate the truck from the hole in question by pulling was not the proximate cause of the injury, but the act of the appellant in permitting the floor to become defective by , the removal of the broken plate, which caused the existence of the hole, was the proximate cause of the injury. In view of the observations above made, we are unable to say that the court committed any error in refusing to take the case from the jury, or in refusing to give the two instructions, asked by the appellant in relation to fellow-servants and variance. Accordingly, the judgment of the Appellate Court is affirmed. T 7 . „ 7 Judgment affirmed.